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NAVY | DRB | 2002_Navy | ND02-00187
Original file (ND02-00187.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-EWSA, USN
Docket No. ND02-00187

Applicant’s Request
The application for discharge review, received 011220, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 021010. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was three to two that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Issue 1: This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record and previous case, the following additional documentation, submitted by the applicant, was considered:
Marin Urgent Care Diagnostics Test dated February 22, 2002
Marin Urgent Care Diagnostics Test dated September 16, 2002
Character Reference (mother) dated February 24, 2002
Character Reference (stepfather) dated February 24, 2002
Character Reference dated March 16, 2002
Character Reference dated September 21, 2002
Character Reference dated August 21, 2002
Character Reference dated March 7, 2002
Character Reference dated February 24, 2002
Character Reference dated October 6, 2002
Character Reference dated February 25, 2002
Character Reference (BEW) dated March 11, 2002
Character Reference (MSG) dated March 11, 2002
Character Reference dated August 7, 2002
Character Reference dated April 25, 2002
Character Reference dated March 16, 2002
Character Reference dated January 27, 2002
Letter of Appointment to Parks and Recreation Commission, September 7, 2002
Letter from Town Clerk dated October 1, 2002
Police Record Check dated November 30, 1999
Police Record check dated January 8, 2002
Character Reference dated September 23, 1999
Character Reference dated October 6, 1999
Character Reference dated September 19, 1999
Character Reference dated September 29, 1999
Letter of Recommendation (undated)
Letter of Recommendation dated April 15, 1992
Certificate of Attendance dated August 16, 2001
Certificate of Attendance dated April 11, 1988
Certificate of Completion dated September 1, 1989
Certificate of Completion dated September 26, 1990
Resumé (undated)
Letter from The American Legion dated September 23, 2002
Letter from Applicant dated December 20, 2001
Letter from Applicant dated January 13, 2002
Copy of DD Form 214
Police record check dated January 8, 2002
Letter from Town of Fairfax dated September 7, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     841113 - 850924  COG

 Period of Service Under Review :
Date of Enlistment: 850925                        Date of Discharge: 861223

 Length of Service (years, months, days):

         Active: 01 02 29
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 93

 Highest Rate: EWSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)                      Behavior: 2.80 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

Undated:         Applicant briefed on Navy's policy on drug and alcohol abuse.
861017:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

861024:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine, a controlled substance.
         Award: Forfeiture of $358 per month for 2 months, restriction and extra duty for 45 days, reduction to EWSA. No indication of appeal in the record.
861027:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one incident of drug abuse punished at CO's NJP.
861028:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
861106:  Drug and Alcohol Abuse Report: Cocaine abuse Sep 85 – Sep 86, less than monthly, ashore off duty. Inspection urinalysis Sep 86. CAAC found the Applicant not dependent and recommended separation. Separate SAC/NASAP/NDSAP/CAAC evaluation found the Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: EWSA (Applicant) was referred to the DAPA after being identified as a user of cocaine by NAVDRUGLAB Great Lakes IL 300856Z Sep 86. He was referred to CAAC, where he was evaluated as non-dependent of drugs and/or alcohol and was recommended for Level I education only. At CO's NJP, for this incident, he was awarded forfeiture of $358.00 pay per month for two months, placed on 45 days restriction and extra duty, and was RIR from E-2 to E-1. EWSR (Applicant) is 18 years old and has one year active service. Because of this incident and service record documentation of pre-service use of THC, EWSR (Applicant) has been adjudged as having NO potential for further naval service and is being processed for administrative separation.

861110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

861213:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000803:  NDRB documentary record review Docket Number ND00-00122 conducted. Determination: Discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 861223 under other than honorable conditions for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1: T here is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective
15 Dec 86 until 14 Jun 87, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.jag.af.mil ".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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